Boniface Adonike V. The State (2015)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C.

This is an appeal against the judgment of the Court of Appeal sitting in Benin delivered on 15th March, 2013 wherein the Lower Court affirmed the judgment of the High Court of Delta State which convicted and sentenced the appellant to six years imprisonment with six strokes of the cane for the offence of defilement.

As I can garner from the record of appeal, the facts reveal that on or about the 16th day of June, 2010, the appellant invited and requested a child of 5 years of age to buy pure (sachet) water for him. On her return, the appellant lured her into his room, pulled her pant and had carnal knowledge of her. The appellant was arrested and charged to court for prosecution. The charge read as follows:-

“STATEMENT OF OFFENCE:

COUNT 1:

Defilement punishable under Section 218 of the Criminal Code Cap. 48 Volume II, Laws of the Defunct Bendel State 1976 as applicable in Delta State.

PARTICULARS OF OFFENCE

Boniface Adonike (m) on or about the 16th day of June, 2010 in Issele-Uku Mkpitune Village within the Issele-Uku Judicial Division had carnal knowledge of one Iwebunor Gabriel (f) aged 5 years without her consent.”

At the trial High Court, the appellant denied the charge and pleaded not guilty to same. The prosecution called four witnesses. The appellant testified for himself and called no witness. Counsel for both the prosecution and defence addressed the court. At the end the learned trial judge convicted the appellant and sentenced him to 6 (six) years imprisonment and with 6 (six) strokes of the cane.

Not satisfied with the judgment handed down by the learned trial judge, the appellant appealed to the Court of Appeal, Benin Division. Without much ado, the appellant’s appeal at the Lower Court was dismissed. Still dissatisfied the appellant has appealed to this court.

Two notices of appeal were filed by the appellant on 20th March, 2013 and 3rd April, 2013 respectively. At the hearing of this appeal, the appellant abandoned the notice of appeal filed on 20th March, 2013 and adopted the one filed on 3rd April, 2013. The said notice has five grounds of appeal, out of which the appellant’s learned counsel, Ekeme Ohwovoriole Esq has distilled three issues for the determination of this appeal. The three issues are as follows:-

1. Whether the appellant’s trial and conviction for the offence of defilement, under section 218 of the Criminal Code Cap 48 Vol. II Laws of the defunct Bendel State 1976, as applicable to Delta State, which the respondent began more than two months after the offence was committed, is not a nullity.
2. Whether the Lower Court did not wrongly affirm the trial court’s admission of Exhibit B, said to be the appellant’s extra-judicial statement and if the answer is affirmative, whether the trial court relied on the document to convict the appellant.
3. Whether the respondent proved the offence of defilement against the appellant beyond reasonable doubt.

In the respondent’s brief settled by O. F. Enenmo Esq., two issues are formulated as hereunder reproduced.

1. Whether having regard to the state of evidence before the court, the Court of Appeal was right in law when it affirmed the judgment of the trial court,
2. Whether the Lower Court erred in law when it affirmed the conviction of the appellant based on section 218 Criminal Code Law Cap. C.21 Law of Delta State.

I intend to determine this appeal based on the three issues formulated by the appellant, after all it is his appeal.

Arguing the first issue, the learned counsel for the appellant submitted that the appellant’s trial for the offence of defilement under Section 218 of the Criminal Code Cap. 48 Vol. II Laws of the Defunct Bendel State 1976 as applicable in Delta State was a nullity because the trial court lacked jurisdiction to entertain the charge which the prosecution began outside the period of two months prescribed for the respondent to begin the prosecution for the offence.